manner, be averred. If it be made part of the policy that the CHAP. XX. funds alone of the association of which defendant is a member are liable, the existence of them must be averred. The next material averment is, that the property insured was lost, and by what means that loss happened; in stating which, the plaintiff must bring it within one of the perils insured against by the policy, but he must always state it according to the truth. Thus he ought to show, that it was Loss how by perils of the sea, by capture, by fire, by detention, by barratry, or alleged. any of the other perils mentioned in the policy. Where the loss had been by barratry, the breach was thus assigned (the proceedings being at that time in Latin) per fraudem et negligentiam magistri navis depressa et submersa fuit, et totaliter perdita et amissa fuit; and it was insisted that this was not within the meaning of the word barratry, but the breach should have been express, that the ship was lost by the barratry of the master, The Court were unanimously of opinion that there was no occasion to aver the fact in the very words of the policy; but if the fact alleged came within the meaning of the words in the policy it was sufficient. Barratry imports fraud, and he that commits fraud may properly be said to be guilty of a neglect, namely, a breach of duty. It is true that the practice at present, as I have reason to believe from precedents which I have seen settled by the ablest special pleaders, is to aver such a loss to have happened by the barratry of the master or mariners. If the plaintiff in his de- Damages. claration allege that a total loss has happened, and lay the damages as for a total loss, it shall be no bar to his recovery, though he can only prove a partial loss; for in an action for damages merely, a man may always recover less but never more than the sum he has laid in his declaration.c By Reg. Gen. Hil. T., 16 Vict., it is provided that "in actions on Interest policies of assurance, the interest of the assured may be averred thus: how averred. 'That A, B, C, and D [or some or one of them], were or was interested,' &c., and it may also be averred That the insurance was made for the use and benefit and on the account of the person or persons so interested."" An attempt was once made to non-suit a plaintiff because the declaration alleged that he had a smaller interest than he appeared in proof to have. But this attempt failed.d It was an action on a policy of insurance, in which the declaration stated that the plaintiff was possessed of of the ship on which the insurance was made. It was proved that the plaintiff had purchased the whole ship at one period; and as there was no evidence to show that he had since parted with any share of it, the counsel for the defendant insisted that the plaintiff had not proved his declaration, which alleged him to have but one-third. Ld. Mansfield overruled the objection, saying that this was prima facie sufficient evidence; for omne majus continet in se minus." A person who assigns away his Assignment interest in a ship or goods, after effecting a policy of insurance upon of policy. them and before the loss, cannot sue upon the policy, except as a 98. a Hallett v. Dowdall, 21 L. J. Q. B. b Knight v. Cambridge, 2 Ld. Raym. 1349, 1 Stra. 581. c Gardiner v. Crosedale, 2 Burr. 904; 1 Black. Rep. 198. d Page v. Rogers, Sitt. at Guildhall, Hil. Vac. 1785. surance. Park on In- trustee for the assignee. Whether he can sue in that capacity depends upon circumstances. A bankrupt may sue in his own name as trustee for a cause of action in which he has ceased, by assignment, to have any beneficial interest at the time of his bankruptcy.b It is no answer to an action on a policy on goods lost or not lost that the interest in them was not acquired until after the loss.c When policy effected in broker's name. Pleas. We have seen that policies of insurance are seldom effected by the party himself really interested, but generally by the intervention of a broker employed by the insured, who transacts the business with the underwriters as attorney for his principal, from whom he receives his instructions, and from which, if he deviate, he is answerable to his employer in an action on the case, like any other person who undertakes any office, employment, trust, or duty, and who thereby impliedly undertakes to perform it with integrity, diligence, and skill. It is also common for the broker to open the policy in his own name, at the same time declaring for whose use, benefit, or interest the same is made; which latter declaration by statute is rendered absolutely necessary. As the policy may be made in the name of the broker, so also may the action be brought in his name, as was done in the case of Godin v. London Ass. Co., and a variety of other cases.d As this contract depends so much upon the purest good faith and the most liberal communication of circumstances relative to each particular case, when gaming insurances, without interest, were abolished by the legislature, in order effectually to answer the purpose intended it became necessary to order that a disclosure of all insurances effected on the same property should be made, even after an action brought. Thus it was declared, "That in all actions or suits brought or commenced by the assured upon any policy of assurance, the plaintiff in such action or suit, or his attorney or agent, should, within 15 days after he or they should be required so to do in writing by the defendant, or his attorney or agent, declare what sum or sums he had assured or caused to be assured in the whole, and what sums he had borrowed at respondentia or bottomry, for the voyage in question in such suit or action."'e If the contract declared on be a simple contract, the plea of non assumpsit, or a plea traversing the contract or agreement, will put in issue the fact of making the express contract or agreement alleged; and all matters in confession and avoidance, not only those by way of discharge but those which show the transaction to be void or voidable in point of law, as fraud, unseaworthiness, misrepresentation, concealment, alteration, and the like, must be specially pleaded. it be a sealed contract, the plea of non est factum operates as a denial of the execution of the deed in fact only, and all other defences must be specially pleaded.f Money may be paid into Court, by leave of the Court or a judge.s If d 1 Burr. 490; 25 Geo. 3, c. 44; see also 28 Geo. 3, c. 56. e 19 Geo. 22, c. 37, s. 6. 15 & 16 Vict. c. 76, s. 70. Issue being thus joined between the parties, the next object for CHAP. XX. our consideration is the proof which it will be necessary for the plaintiff to produce, in order to support his case. This enquiry will be rendered very easy, by reflecting upon those allegations which, as we have before shown, it is incumbent upon the plaintiff to insert in his declaration. The first evidence to be given is, that the defen- Evidence. dant's hand-writing is subscribed to the policy, or that of his authorised agent. This, in the liberality of modern practice, is seldom required to be done, as the subscription is usually admitted, but in strictness it may be insisted on; and in a work of this nature it is my business to point out everything which either party is expected or compellable to perform. When the signature is once proved, the court and jury are in possession of the extent of the contract (except as it may be further extended by usage), the conditions to be performed on either side, and all the other circumstances relative to the risk insured; and although in the course of our enquiries we have seen frequent instances where the usage and practice of a particular trade control and extend the written words of a policy, yet in no case shall evidence of any agreement be allowed which directly tends to contradict the policy; for to suffer them to be defeated by agreements by parol, not appearing, would be greatly to diminish their credit, and to render them of no value." b The declaration in Hallett v. Dowdall, was for a total loss on a policy on a ship and cargo, and stated that the defendants were shareholders of and partners in The General Mar. Ass. Co.; that they executed the policy which, in effect, made the funds alone of the company liable and that the funds were sufficient: to this there was a demurrer by one defendant, and pleas of N.A. and traverse of sufficiency of funds by another. On the trial of the issues of fact the plaintiff proved that the defendants were all shareholders and one of them a director, and put in the deed of settlement and the policy. The deed of settlement showed, amongst other things, that the clause above alluded to was an essential feature of the company, that the directors issuing the policy were not to be responsible, and that no proprietor was to be liable beyond the amount of his unpaid shares. The policy was signed by three directors, none of whom were defendants. It purported to be made between the company and the assured, and contained the restrictive clauses stated in the declaration.c Evidence was also given that only a portion of the shares had been subscribed for, and only a quarter of those shares paid up. It was then proved on behalf of the defendants that, neither at the time of the loss nor since, had the company any available funds in their hands, out of which they could pay the plaintiff. Held on the demurrer that the declaration disclosed a joint contract by all the defendants. Held, on a Bill of Exceptions, that the deed of settlement, the policy, and the facts proved, contained no evidence of such joint contract. a See Wigglesworth v. Dallison, 1 Smith, L. C. 306. b 21 L. J. Q. B. 98. c As to these restrictive clauses see also 13 Q. B. 960 and 4 Exch. 525. 106 Park on In surance. PROCEEDINGS UPON POLICIES OF INSURANCE. The policy not only proves the extent and nature of the contract, but it also establishes another allegation in the plaintiff's declaration, namely, that the premium was paid; for it was formerly shown that every policy contains the following clause: confessing ourselves paid the consideration due unto us for this assurance by the assured, at Interest in and after the rate of per cent. The plaintiff having averred in goods how his declaration that he is interested to the amount of the property proved. insured, it is absolutely necessary that this allegation should be proved. This he must do by a production of all the usual documents, such as the bills of sale, bills of parcels, and the costs of the outfit, the bills of lading, signed by the master, specifying the goods received on board and for whom he is to carry them, customhouse clearances, and every other paper which may be thought necessary to substantiate his right to the property. It is usual, also, to call the captain or some other person to prove that the goods Property in mentioned in it were actually on board. The property of a ship may ship how be proved by parol evidence of the possession of the assured; the mere fact of possession by one as owner being sufficient prima facie evidence of ownership, without the aid of any documentary proof. In the case which determined this, such parol evidence was held not disproved by showing a prior register in the name of another in 1799, and a subsequent register to the same person in 1802, as it was quite consistent with a title in other persons in the mean time, agreeable to the averment in the declaration. But, as a certified or an examined copy of the register is so easily to be had, it is advisable to secure this kind of evidence. proved. Proof of loss. It is, in the last place, incumbent on the plaintiff to prove that a loss has happened, and that, by the very means stated in the declaration. It is absolutely necessary that this rule should be strictly adhered to; for, otherwise, the insurers would come into court prepared to defend themselves against one charge and one species of loss; and they would then be obliged to resist a demand upon a quite different ground.d But where a loss is averred to be by perils of the sea, and some of the goods insured are spoiled, and others saved, it is allowable to give the expense of the salvage in evidence upon such an averment, because it is a consequence of the accident laid in the declaration. In an action on a policy of insurance, for insuring goods on board the ship A., the plaintiff declared that the ship sprung a leak, and sunk in the river, whereby the goods were spoiled. The evidence was, that many of the goods were spoiled, but some were saved; and the question was, whether the plaintiff might give in evidence the expense of salvage, that not being particularly laid as a breach of the policy in the declaration. Ld. Hardwicke Ch. Just.-I think they may give it in evidence; for the insurance is against all accidents. The accident laid in this declaration is that the ship sunk in the river; it goes on and says, that by reason thereof the goods were spoiled, that is the only special damage laid yet it is but the a Ante, p. 14. b See Caldwell v. Ball, 1 T. R. 205. d Kulen Kemp v. Vigne, 1 T. R. 304, e Cary v. King, Cas.Temp. Hardwicke 304. common case of a declaration that lays special damage, where the CH. XXI. plaintiff may give evidence of any damage that is within his cause of action as laid. And though it was objected, that such a breach of the policy should be laid, as the insurer may have notice to defend it, it is so in this case, for they have laid the accident, which is sufficient notice, because it must necessarily follow, that some damage did happen. As the right of freight results from the right of ownership of the ship, the evidence, when this insurance is on freight, will be substantially of the same kind." Upon a policy on freight, it is incumbent on the assured to prove, When pothat unless some of the perils insured against had intervened to licy is on freight. prevent it, some freight would have been earned, and where the policy is open, the actual amount of the freight, which would have been so earned, limits the extent of the underwriter's liability. In every action upon such a policy evidence is given, either that goods were put on board from the carriage of which freight would result, or that there was some contract under which the shipowner, if the voyage were not stopped by the perils insured against, would have been entitled to demand freight; and, in either case, if the policy be open, the sum payable to the shipowner for freight, together with the premiums of insurance and commission thereupon, is the extent to which the underwriters are chargeable. The valuation upon a freight policy of insurance is calculated upon all the goods the ship is intended to carry upon the voyage insured; and if, by a peril insured against, the ship be lost, when part only of the goods, the freight of which was intended to be covered, was on board, the valuation must be open, and the assured can only recover as for that proportionate share. But if there be a loss by a peril insured against of the whole subject-matter of the insurance to which the valuation applied, as of all the intended freight, when the insurance is on freight, the valuation in the policy will not be opened. CHAPTER XXI. BOTTOMRY AND RESPONDENTIA. b THE contract of bottomry is in the nature of a mortgage of a ship or ship and freight, when the owner of it borrows money to enable him to carry on the voyage, and pledges the keel or bottom of the ship, or ship and freight, as a security for the repayment; and it See Stewart v. G. M. Ins. Co. 2 H. of L. Cases, 159; Forbes v. Aspinall, 13 East, 325. b The master cannot mortgage the ship. Stainbank v Fenning, 11 C.B. 84; Stain bank v. Shepard, 22 L. J. (Exch.) 341, Ireland v. |